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Abstract

The Supreme Court’s decisions under the pollution control statutes administered by the Environmental Protection Agency (EPA) reach startlingly anti-environmental results, but they are explained more by the Court’s overwhelming hostility toward the private enforcement of statutes, rather than an anti-environmental bias. Adding insult to injury, in one of the rare victories for private environmental plaintiffs in those decisions, Justice Kennedy queried whether citizen suits intrude on the President’s Article II executive power and violate the separation of power principles. While other Justices have raised the same concern, Justice Kennedy’s invitation is particularly significant because he is a swing vote in environmental and other social justice cases.

Part II of this article describes citizen suits and their role in the enforcement of environmental law. Part III outlines the background of separation of powers and the dominant theories of analyzing separation of powers issues. Part IV explores the roles of public and private enforcement before and after the framing of the Constitution and the effects of those roles on interpreting the three relevant constitutional clauses. Part V examines Appointments Clause challenges to citizen suits. Part VI examines Vesting Clause and Take Care Clause challenges to citizen suits. This article concludes that citizen suits are constitutional under the Vesting Clause and the Take Care Clause and do not violate the Appointments Clause.